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tv   Copyright Protection  CSPAN  January 18, 2014 3:30pm-6:08pm EST

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month, asking it to study the current state of the making aailable right and to make recommendation. we need to know how american consumers fare under current law , on-e context of digital such asransmissions peer-to-peer networks, streaming services, and music downloads. and downloads. additionally we need to know how the competitiveness of u.s. technology can be strengthened in the global marketplace under international treaties to preserve robust protection for creators. in conjunction with the testimony we have received today , this report should provide us with valuable guidance. secondly, the evolution of technology has had a major impact on the debate about copyright protection and has
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generated many unresolved legal issues. last friday, the supreme court granted sanctuary in a case where the nation's largest television broadcasters had reo, at suit against ae streaming video service. this decision could have a wide ranging impact on internet streaming, cloud computing and the television industry. whatever the outcome of this case, i believe the law must avoid any added consumer ramifications, including higher fees and restricted access. to be clear, moving forward in this copyright review, we must be sure the creators are protected. of strong protection for creators will ensure that the consumers continue to enjoy enrich our lives.
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accordingly, i think the chair for his leadership on the issue and look forward to further collaboration. i thank you. >> i think the gentleman. now the distinguished gentleman from virginia. mr. chairman. i appreciate you holding this hearing. i want to welcome all of our witnesses in this capacity crowd in the audience to a hearing that goes to the heart of copyright law -- what is the scope of copyright protection. the committee will hear testimony on three related issues. the first issue a making available right will be settled in 1980 separatetreaties eight. however, uncertainty has arisen in filesharing cases and an opinion released by the fifth
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circuit only two weeks ago. opinion ofard to the our witnesses on wrapper jurist. -- jurisprudence and whether congress should bring transparency to this aspect of copyright law. although the u.s. is not a party to the rome convention, ongoing discussion in geneva could result in additional protection for broadcasters in an effort to determine a signal theft. broadcasting is changed significantly since the rome convention was signed in 1961. smartphones now make everyone in this room up broadcasting in ways that were unimaginable 50 years ago. i look forward to hearing from professor schultz and mr. love on this topic. finally we will hear about an issue that has received less public attention for does go to the heart of how citizens
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interact with their government. it was also the subject of the buried first copyright -- the very first copyright case heard by the supreme court. clash with the ability of our citizens to know what laws and regulations they must live by. claim -- despite administration used to the contrary -- a sharply declined. however, the issue of copyright rejection for codes and standards incorporated within them is more -- copyright protection are codes and standards incorporated within them is more nuanced. i look forward to hearing from a representative of the american national standards institution maden individual who has congressional hearings like these is long-standing mission. before i conclude my opening remarks, let me turn to an issue
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not being heard today. i'm sure there is no one in this room who is not aware that the supreme court announced on friday it will hear oral arguments later this spring in reo case. it will also hear arguments in the patentstroll issue, something this committee and the house of already addressed. this is in addition to cases taken up a few months ago by the justices. it is hard for me not to notice that once again this committee continues to lead the way on critical policy issues. i want to thank the witnesses for their time here today and the flexibility in their schedules to enable them to be here. thank you, mr. chair. >> thank you. we have a very distinguished panel. if you would please stand and
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raise your right hand, if you will. do you swear the testimony you are about to give is the truth, the whole truth, and nothing but the truth, so help you god? >> mr. chair -- >> let the record show that all answered in the affirmative. >> mr. chair? >> yes. >> can i ask for unanimous consent to the documents in the record at this time so they can be copied by the members? >> yes. of them? i take all >> take all of them. >> thank you. without objection. only a standing room crowd, and this shows me that you will have more than a casual interest in this very significant issue. i am pleased to have you all with us today. speaker is a professor at the ucla school of law. in addition to numerous books on
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the united states and international copyright law, mr. 14-92 ons revised copyright. ab withived his distinction and honors from stanford university. mr. lynnwitness is money. professor lunney earned his jd from the stafford school of art and his bs from texas a&m university. fromso earned his phd tulane university while teaching at the law school. our third witness is mr. mark schultz, professor of law at southern illinois university. he is the sitting scholar at the department for copyright law at george mason.
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--fessor love -- those without any connection to the university they know -- is that a dog? >> it is a racing dog. thank you. >> i am awarded professional credit or knowing that. i accept it. our fourth witness is mr. james love, director of knowledge at the college of the international. he has a jurist dr. degree from harvard university and a masters in public affairs from percy university, the woodrow wilson school of international affairs. our fifth witness is ms. patricia written, the vice president and counsel for the american professional standards is to do. in 2002 after years in private practice.
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our sixth and final witness is mr. carl malamud, the director of -- strike that. directs the nonprofit to work on public demesne -- domain information. he received his to grieve from the kelley school of business. mr.first witness will be nimmer. it is good to have you all with us. lady and gentlemen, if you could confine your statements to on or about five minutes. there is a panel on your desk where the green light turns to amber. the clock begins ticking. willfive minute counter appear and then the red light illuminates. we try to apply the five-minute rule to ourselves as well, so if earring -- during questioning if
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you could be as terse as possible, that would be appreciated. mr. nimmer, if you could kick the ball, and we are pleased to have you with us. >> think you, mr. chairman. and thank you to all members of the committee for the opportunity to testify this we address the rights of copyright owners. one of those rights is distribution. specifically, does the act of placing a digital file containing a copyrighted file in a file shuddering folder on the internet violate copyright law? only if they can prove that a third party the file? in short, the distribution rights includes a making available component. let us imagine a user uploads a full copy of the motion picture "avatar" to assure folder
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operated by a peer to peer service. anyone on the network and watch at no charge. i suggest that the better direction of congressional action is to focus on the making available right. the alternative is to force copyright owners to prove third- party subsequently downloaded that particular copy of "avatar." that alternative unnecessarily clogs judicial procedures and threatens user privacy. inwas the intent of congress 1976 to include a making right, and the has joined to treaties that require countries to recognize that right. unfortunately, nonetheless, there have been divided rulings on the subject from the district courts. although there is one recent ruling from the 10th district
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recognizing the making available nott, there is still consensus in the courts. for that reason, i urge congress to reaffirm and make available that aspect of the copyright law. referring to the mid-21st century, the copyright law gave owners the exclusive right to publish a copyrighted work. some who made work accessible to the public was an infringer with no further proof needed. if we imagine a bookstore in numerous950 featuring copies of a bestseller in the front door, the case was complete. at that time had no need for undercover agents to ensure that third-party customers walked out of the store with copies of the book in hand. that pointwners at
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enjoyed the exclusive right to make available the protected work. they could have hired investigators to stand in the corner and record every transaction, for that exercise was always considered unnecessary. it should be considered each will he unnecessary today. a private eye unobtrusively watching the cash register to see who bought books, proof of downloading today is far more invasive. it requires subpoenas to internet service providers to identify, for example, all subscribers behind the internet protocol addresses who downloaded "avatar" on a given day. for that reason we have seen case after case confronting procedural challenges to these types of subpoenas. the entire access can and should be avoided. emotions over subpoenas or digital dragnets,
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there is a much more straightforward action. continue copyright law on its traditional path. procedurestigation against upload or should be streamlined. the resulting case need not delve into intricate questions of who downloaded the work on which day. equally it should not result in a million dollar judgment. with that, i recommend congress investigate two possible adjuncts to its reaffirmation of the making available right. at the first is the recalibration of statutory damages to a sensible level that deters up loaders from infringing to theies, but not possibility of billion-dollar reports as at present. the second is to establish a form of small claims court to consider routine p2p cases,
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after the facts of been establishing a fair proceeding. this will set the law on a reasonable course designed to protect the interests of kobe right -- copyright owners. thank you, professor nimmer. mr. linney, i talked to professor schultz. i will advise you because the texas football team had a not i willnial goalpost, but hold you harmless for that. make you for being with us, sir. >> thank you. i'm terribly sorry that the aggies were not polite to your team. maybe not that sorry. but it was a good game and if you did not stay to the end, you missed something pretty exciting, didn't you? taskbably have the hardest of front because the first point i would like to make to the committee is that filesharing
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may not be quite the scourge it has been made out to be. it is not the scourge of american culture or business. the second point i would like to make, even if it were, the making available right is not going to solve the problem. the third point is if we add the making available right, we are going to reopen a lot of what seem to be settled issues on the internet with respect to linking, cloud computing, social networking. these things have been resolved under the existing lingua sic framework. if you add of a right, we will have to relitigate them all over again and i think that is a problem. i do not have too much of a chance to persuade you that filesharing is not a bad thing. for me there is a fundamental difference between copying and stealing. stealing is wrong. copying on the other hand is a generally good thing. would not have sliced bread
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without copying. we would not have culture. we would not have civilization. i can speak to you today and you can understand what i'm saying because you and i the the same language. we speak the same language because we are born with the intrinsic ability to see or hear and imitate. copying is a fundamental attribute. it is what makes our civilization possible. don i look at all sharing, i not see a scourge of culture. i see an invention that has put more music in the hands of americans than any invention since the phonograph. -- jobsthe real problem are lost, jobs for the creation of music, people not getting paid. why would they remain in business? when we think about those problems, for me, at least, the jobs argument is reflecting a very old fallacy economist salve to divide since 1950.
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that money is not lost. it does not go out of the economy. the fact that they do not pay for that music means it stays in their pocket. the job is created elsewhere in the economy. there is no loss on the jobs front. with respect to the creation of music, this goes to the heart of copyright. the fundamental premise for 300 years is more copywriting equals more revenue equals more works. we have very few opportunities to test that premise, that filesharing gives us one of the few. revenues for the music industry in particular has fallen to radically. whether that is due to filesharing or other factors, he it is difficult to say. i'm purposely willing to concede that some part is due to filesharing. musicn to measures of output by most of the measures we could use -- the musical output remains remarkably healthy. if the goal of copyright is to produce more and better work, filesharing does not seem to be
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interfering with that at all. maybe you do not accept my perspective on that particular move onto tot's the second point, which is the making available right will not enable us to solve the filesharing problems. it is not the proverbial silver you have toher prove making available or distribution, the way you are going to do it is to download the work from the filesharing program. in the distribution context, you may have to download it to show the distribution is made. in the making available context, you have to download it to show that the link is what it says it is. things that are on the internet are not always what they say they are. that may surprise the committee. the fact of the matter, there is no real difference here. from 2000 until 2008, the music 83 --ry said that some
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americans were involved in filesharing. the music industry gave up that battle, because estimates suggested there might be 35 million americans involved in filesharing. it was never realistic to go after all of them. yourd, those are customers. suing them is not good for business. third, it's was not working. i do not think the making available issue will help. it will still not enabled the music industry to go after individual file sharers. the third point to much it will reopen a lot of what seem to be settled issues. i think that that will be unfortunate. thank you. >> thank you, professor lunney. professor schultz? ranking member conyers, members of the subcommittee -- i appreciate the chance to speak with you. , the scope ofct
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copyright, is the right place to conduct a review of the copyright act. however, the subject of copyright should the the least controversial aspect because it goes to the heart of justification. today i will be speaking on my own behalf as a copyright lawyer and scholar. i will be speaking on the scope of copyright law in general and then i will specifically address to the principles apply protection of broadcast. copyright has traditionally had a broad scope for good reason. copyright or text the intellectual labor of authors, laborsd that those result in original expressed work. it is designed to protect those who create content to enjoy the benefits of what they create through exclusive rights. when creators benefit through their labors, the public benefits. well many speak of striking a balance between the rights of copyright owners in the interest
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of the public, in truth those interest are rarely out of balance, at least with respect to the full top the right principles such as the scope and subject matter of copyright. james madison recognized this fact and "the federalist papers," when you said that the coincides withly the claims of individuals. the public will get the works to educate, entertain, inspire, and inform them only if their creators can obtain just compensation. in the end, creators, businesses, and the public are all best served when our intellectual property laws recognize the essential core inventthat those who labor and risk capital to create and distribute original content deserve protection of their property rights. which brings me to the topic of legal protection for broadcast. in the copyright and telecommunications laws, congress created a legal
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framework that ensures that both creators of television programs and local broadcasters have the opportunity to be compensated for their labor, investment, and innovation. this legal framework has two purposes. of the first is to prevent third parties from undermining the labor, investment, and incentives of creators and broadcasters by free writing under labor and investment. the second purpose is to encourage high-quality, locally focused broadcast television. that has largely been a success. we have a dynamic and vibrant broadcasting thestreet in which the rights of individuals and the public good are both promoted. here are just a few examples. there are nearly 1400 commercial broadcast stations in the united states. 70% of americans get their news from local tv daily, including important emergency news.
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nearly 60 million people still depend exclusively on over the air signals, including 30% of households with annual incomes under $30,000. broadcasters account for 90% of the most-watched programs. the public is well served by the current system. , manyunately underestimate the substantial investment required to make it happen. at the airwaves may be viewed as a public resource. but privately created right test systems and the programs transmitted over them are not. but go broadcasters maintain expensive transmissions facilities and invest in new technology, including billions in the recent shift to high definition broadcasting. network affiliation fees and syndication fees. in an era of shrinking news budgets, the average local news a welcomebudget is
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exception of $4 million a year on average. in conclusion, there is no such thing as a free lunch. creators and broadcasters need protection of their copyright rights to make their content possible. good --ear the public as madison said about intellectual property rules generally -- fully coincide with the interests of individuals. thank you. >> thank you, mr. schultz. mr. love? >> thank you, mr. chairman, for the opportunity to testify. i have been asked to talk about the rights of broadcast organizations, including proposals for a new u.n. treaty that would establish a set of neighboring rights for into d's that distribute information that they do not create and do not own. that's. agency for responsible for the development
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of copyright policy is the world intellectual property organization. committee onanding copyright rights known as the sccr. sccr has been trying to obtain global consensus on a new broadcast treaty. several member states have called for a diplomatic conference on this treating -- treaty. there are major disagreements among country is. according to the current working document any new proposals table during negotiations in december would- the wifo treaty create a new layer of rights that coexist with copyright, benefiting organizations with broadcast information. severaldcasters, and
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member states of wifo such as japan and member states of the european union, are pressed for an agreement that would expand considerably these set of related rights that exist in the 1961 treaty, the rome convention, that the united states has not signed. the 1961 rome convention created a set of standards for producers to supplement protections that authors have under the berne convection -- convention. in 1961, the distinction was made to make broadcast organizations a layer of rights as a reward for their role as intermediate or between authors and audiences. many consider the 1961 rome convention a mistake. can beadcaster right considered the weakest and least defensible right within intellectual property rights.
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the united states did not sign the rome convention, but does provide some broadcast entities with limited retransmission rights through the communications regulation usc-325.including 47 n wifo, they wish to expand the channels such as tnt, hallmark channel, espn, or subscriber-based media channels provided by xm serious -- xm sirius. a growing number of countries went to expand the rome approach, more broadly to the internet. meant to provide for 50 years of exclusive rights on fixed agents of broadcast. uspto has proposed
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a compromise that would enable broadcast services to "authorize simultaneous or near- simultaneous retransmission of broadcasts or a pre--broadcast signal over any medium." this includes the internet, but no station rights. so far, no country has voiced support for the u.s. proposal. a much more aggressive alternative from japan and the european union are being considered it would provide rights to broadcast entities to distribute information they did not create or own. this is akin to giving amazon or barnes & noble a layer of copyright in every book they sell or making google apart owner in every webpage they locate on the internet. do face unique
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challenges regarding the retransmission of their signals. proposal may be appropriate to address some of these channels. here we have an open mind. but for pay services and webcasting, or is no need to create a new intellectual property rights dealing with retransmissions. copyright, theft of service laws, and contracts are sufficient to address piracy. for all broadcasting noanizations, there is economic justification for giving a distributor any right to the underlying content area it does not -- there is no economic desiccation for giving a distributor any right to the underlying content. it does not make sense. it does not make sense to give the distributor rights for the information that lies on top of the copyright.
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thanks very much. >> thank you, mr. love. ms. griffin? >> thank you very much, mr. chairman. my name is patricia griffin. aam the president of ansi, nonprofit organization. most people do not know how much we depend on standards to make sure that every day life works. ensures you ansi can use any atm in the world and products on store shelves are we are led by the private sector with hundreds of organizations working in different technical areas and different sectors. it is a consensus-based and market driven process that is open to participation by all affected stakeholders. the u.s. is one such stakeholder and federal, state, and local
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governments are active partners in the development of standards and codes when the activity is relevant to their needs. the government uses the standards in a variety of ways, including to establish procedures and develop regulations for public safety and welfare. our national standardization system and the public-private partnership are reflected in the 1995 act, and the associated omb circular a1-19. public directs the sector to consider private sectors standards in lieu of government standards. for standard to be incorporated into reference, the agency must the agency is
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reasonably affected. available has always met the standard is accessible to any potential user. it does not require that the standard be available without a fee. recently concerns have been raised about whether the reasonably available requirement should be changed in light of expectations of free online access. for example, in early 2012, the national archives and records administration solicited comments on a petition arguing materials in the cfr should be free. but just three months ago, after a conference of analysis, they concluded reasonably available continues to mean just that. it does not mean for free. they relied on large part on another apprehensive analysis of the issue by the conference of the united states in december 2011. the question they were trying to answer was simple --
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why shouldn't the standards be free? simplems like a statement. it misses important considerations. first, every standard is a work of authorship and copyright protected, giving the owners certain rights of control and renumeration. fornd, they cannot charge standards imposed. this disrupts the standards development ecosystem. the funding has to come from somewhere. toreasing participation fees offset lost sales revenues would disenfranchise consumers of small businesses. money would have all the influence. lastly, if a company could not stay in business, standards would remain unwritten. the government would have to aep up, take over what is now market-driven system, and
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somehow find the money, time, and expertise. what is the answer? the public and private sector should continue to make standards available on a reasonable basis. for some, this may mean providing free access. for others, it may mean at reasonable prices. recognizing there is not one solution to the access issue, they found it is for federal agencies to continue to work with sto's to provide reasonable access. omb nce was contained in show government agencies must observe and protect the rights of the copyright holder. that is what is being done. many sto's make standards for free or at a discount and some make certain standards and codes available online on a read only
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hasis. for its part, -- launched an online portal for the online user communities. they believe that the development of standards requires a massive investment of time, labor, and money. this is one of the earliest and most successful examples of the public-private artisanship, which is benefited our nation on several fronts. for theu so very much opportunity to testify for you today, and i will be happy to answer any questions. >> thank you, ms. griffin. malamud? >> thank you, mr. chairman. i am the founder of p ublicresource, org, an entity
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that works closely with improvent to help them their own operations. for helpingible government agencies replace databases on the internet for the first time. we worked with speaker boehner and chairman issa to put a full archive of video from the house oversight committee and 14,000 hours of additional hearings online. i would like to highlight three key points. first -- there is a fundamental principle of the rule of law that states if we are to be an empire of laws and not of men, we must publish the edicts of government for all to know. because ignorance of the law is no excuse and an informed citizenry must educate itself on its rights and obligations. that the law has no copyright or cause it is owned by the people
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is a principle repeatedly affirmed by the courts. the spike that principle, my nonprofit has received -- despite that principle, my nonprofit has received stern takedown orders. the federal code of regulations deliberately and explicitly incorporates public safety codes that become binding law. as the president of the american national standards institute thatly states, a standard has been a incorporated by reference has the force of law and should be available. assembled a has collection of 1000 of those public safety laws and we have made them available to the public for the first time on the internet. service, standards bodies are suing us for "massive copyright infringement." they are suing us for publishing the law without a license. my second point is about money.
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at some standards bodies insist that before one can read or speak the law, one must first obtain their permission. they see everybody needs a license because they need the money. at what the goal of their process is precisely that their safety codes become the law. they lobby aggressively for that outcome and they boast loudly when their codes are adopted. when a safety code becomes law, the publisher gets the gold seal of approval of the american people. they exploit that position by selling off ancillary services such as membership, training, and certification. the business has become incredibly lucrative and these nonprofit standards bodies pay their ceo's millions of dollars. my third point is the right to read the law and speak the law innovation, anr ovation that leads to goals for
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better use of the law every day, including government workers, students, apprentices, volunteer firefighters, journalist, and citizens. appearedman, i have for the committee's inspection 21 standards for federal law, including the safety requirements for protective footwear, the national fuel and gas code. if you were to read these laws and your hearing record, with make strident objections for speaking the law without a license like my nonprofit faces? that is why 115 distinguished law professors have joined me in calling on this committee to consider and edicts of government amendment to the copyright act to clarify once and for all that the law belongs to the people. thank you very much. >> thank you very much. i want to commend the witnesses.
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you have complied with the five- minute rule. thank you for that. we will try to respond accordingly. what changes to u.s. law would you recommend to address broadcast concerns about signal theft? be to ourhese changes copyright law or our communications law? you.ank that is an excellent question. the law, as it currently stands, serves well. as i testified, it serves for the public interest and the broadcasters as well. there are current developments that could change that, notably case, regulatory proceedings, and a number of stand,ases. as things the law works remarkably well.
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conceivablyeven joining a new broadcast treaty would not require us to change the law. the current statutory scheme works well and i'm not aware -- although i do not speak on behalf of all broadcasters -- i am not aware of broadcasters seeking new rights. thank you. >> let me ask you another question, mr. schultz. in your work on copyright issues, what other issues do you believe are of interest to generally?wners sam farr thank you -- >> thank you. i think the subject of this hearing is in him ordinance one. it is important that creators are able to see the return on their investments and their labor, and that is currently the challenge, the quite obvious challenge, in front of all of us. in the long run, that needs
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to be addressed. >> thank you, sir. professor lunney, do you believe making the explicit making available right would expand copyright protection beyond what it is today? stamping a making available right if we -- >> a making available right if we use the language of the wifo would not expand copyright protection. it would open up challenges in the public display areas retransmission, cloud computing, social networking. it would reopen some of those issues. >> does your lack of concern for the impact of filesharing reflect a view that congress should reduce copyright protection in other areas? the thingsone of that has slipped and almost by accident to copyright law is we
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shifted over the last 20 years or we expanded copyright over the last 20 years to get the individual consumer and evolved as copyright infringers. i think that is a bad development. for the first 200 years, copyright law was directed only at other commercial entities. when you start getting individual consumers and the mix , you get to privacy concerns and other concerns and i think that has created real problems for copyright law. do you believe other nations are close to a conclusion with wifo in developing broadcast treaty? could you repeat that? >> do you believe that other nations are close to a conclusion with wifo and drafting a broadcast treaty? we thought the treaty was essentially stopped.
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treaty,e marrakesh which was adopted by wifo in june 2013, it opened up a lot of space in the negotiations at wifo. i think it was quite surprising in september of last year country after country to the microphone at the general assembly at wifo to call for diplomatic conference in 2015. i think the secretary is looking for a hat trick. they would like to have three treaties at the end of the copyright field, having concluded the beijing treaty and the marrakesh treaty. i think the focus on that -- is nold prefer that there broadcast treaty. we are opposed to the proposal. but i wouldn't really -- i think don't are wrong if they think this is moving forward. at this point, there is a large
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number of countries calling a diplomatic conference. want to go to diplomatic conference, it's very difficult to predict what the outcome will be. you, sir. let me try to beat that red light, ms. griffin. how do some states deserve full access to the laws and rules by which they are required to live? >> thank you for the question. i think the answer depends on an analysis of many dimensions. thefirst dimension is recognition that standards and codes are original works of authorship and entitled to copyright protection. even at a time when they are incorporated by records and legislation, but the second and the ninth circuit have held that those standards and codes do not necessarily lose their copyright protection by virtue of that. another dimension of the issue 19.omb 1a-
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that's standards -- that standards be incorporated into federal regulations. the final element, this is the one that says the citizens should have the right to see what the law is. the way that those three dimensions have been bridged in the courts over the years is the ritual that says -- is a tool that is part of the freedom for information act. is access to reference. they can have access to extrinsic standards as long as they are available to that class of persons that are affected by it. that has enabled them to comply with regulations while respecting the copyright of the
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standards incorporated. recently that has been challenged by mr. malamud and others, and they have questioned whether the reasonably available standard ought not the changed to make the standards for free. has concluded that the current process contents to be the best one, the one best designed to ensure high quality standards are developed and incorporated by reference into federal regulation. >> thank you, ms. griffin. thank you all. red light has illuminated. i turned it over to the gentleman from michigan for questions. >> thank you very much. what youike to discuss see as the key issues facing copyright industries and the public today. when it comes to the current
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copyright system. >> thank you, senator. obviously this is a very broad question and i will have to give a broad answer. i think the answer is, we are written by a statute, essentially 1965, passed in 1976 and now in existence 50 years later with tech knowledge ease not remotely contemplated then. theee each of the rights of copyright owner coming under strain. today we have been talking about the distribution rights and the making available component. you mentioned that the united states anng courts has granted audience to be aereo case. ofsee the convergence of all these rights and the internet. in the 1960's there was a great difference between reducing a book, publishing it, producing it, and then a performance, which would be a play.
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today when the bits flow over the internet, sometimes it is conceptualized as an act of reproduction. sometimes it is conceptualized as an act of distribution. sometimes it is conceptualized as equally as an active performance. a further aspect of copyright law would be to look at exploitation, not within the prism of those five categories that are half a century old, but instead try to formulate the rules of the road going forward. it might be a unitary rights or under the rubric of two rights or three rights. i am not prepared to offer that answer, but i think it's the right question to ask and i would be pleased to work with the committee on a going forward basis. >> we appreciate that. do you think the courts have struggled to apply making ,vailable in the united states even though congress and government experts agree the
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existing law should cover the right? >> yes, i do think the courts have struggled with that issue. i think one of the main reasons individualsthe targeted have uploaded thousands of copyrighted works and unfortunately, the result under our law is someone who has uploaded thousands of works might be liable for hundreds of millions, possibly even $1 billion worth of damage. that is why i think at the same time congress confronts the making available component of the distribution right, congress should also rationalize the award for statutory damages. right now the scheme was set in 1999. law happened to be passed right before the invention of a service called napster. the law is trying to keep case with developers on the ground -- keep pace with developments on the ground. that is why i think a unified approach would be best.
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finally, i wanted to get an explanation for what changed rightind on the available encompassed by the distribution rights. >> thank you. it is a challenge writing a treatise, because anyone sentence can be taken out of context and applied in a way that was not intended. in particular in 1995, there was a second circuit case in which someone who owns laurel and hardy video said his rights had been violated by cbs because they broadcast his videos, and he was correct. but he said his distribution rights had been violated by the performance of those videos. and the district court tended to agree with them. so the second circuit reversed. it'ste up the case to say
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not enough at the works have been made available to the public in some sense. to violate the distribution right, there has to be some actual violation of the distribution right. i wrote that before napster was created. unfortunately that sentence was taken out of context later. >> thank you so much. i yield back the balance of my time, mr. chairman. thank you. >> thank you, mr. conyers. the chair recognizes the gentleman from virginia for his statement. >> thank you, mr. chairman. nimmer, i would like to follow-up on the ranking member's question. that aor lunney has held making available right would
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challenge existing jurisprudence. i take it you do not hold that perception. could you elaborate on that and whether congress should never update the laws for any reason? with thatdo disagree point of view. it all depends on what kind of law congress were to pass. if congress were to pass a standard making available right, that would be our -- and major change. making available has been an aspect of the distribution right. cases construing the copyright owner distribution right have come down on both sides of the distribution issue. that congressis should clarify that the distribution right is violated when works are made available. in other words when an individual uploads of copyrighted work to a shared folder, it has been made available to the world, and the act of copyright infringement is toplete. it is not necessary
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show a subsequent individual downloading network. ad i believe that therefore properly tailored amendment does not collect a question existing cases that were rendered under the performance rights or display right. >> thank you. let me give everyone on the panel -- and it is a great panel by the way. i think all of you for your testimony. this hearing has covered three separate topics. are there any of you who would like to comment on any of the other two topics you did not get to testify in your opening statement? mr. love? on the issue of copywriting distinctionre is a as to whether these state laws and regulations in the united states can be copyrighted and the federal. u.s. laws, the works of federal employees are not subject to
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copyright. i think it would be good to extend to that rule to laws at the state level and everything from court opinions to regulations. the berne mentioned convention itself has a special extration that gives flexibility in the area of testimony, legislation, anything that takes us back to lock type proceedings. i do think it is a good thing you focused on this issue. -- anything that takes us back law-type proceedings. my father was a judge. if you are expected to abide by the law, i think you have a right to know what the law is. i think is good the committee is looking at that issue. >> thank you.
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be twoll briefly standards. of the principles i discussed apply equally to standards, that we need to standards canthors' be compensated for their work. we should keep in mind that standards are incredibly diverse . some standards have thousands of parts and thousands of subparts in those parts. in the case of things like technical standards. so, standards should not all be treated the same and there should be due regard to the complexity, the incredible expense, and the incredible public value created with standards. thank you. >> thank you. this is another one for all of you. itshe committee continues work reviewing copyright law, are the topics in copyright law that you recommend the committee review?
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i will start with professor lunney. >> i agree with david on statutory damages. it it will need to be revisited, particularly in the individual consumer context. it is a real problem to treat them the way we do now. hundreds of thousands of dollars of damages against a mom and a student. it's not good. point well taken. professor schultz? >> the individual copyright act -- the provisions are broken. they are based on an outdated paradigm that seems almost naïve now. that you could contain a file and stop it from spreading. it no longer works for creators. had saw a note that google received its 100 millionth takedown list. >> small creators, creative
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upstarts, creative individuals, tens of house and the people who make a good middle-class living cannot afford to spend all of their time trying to chase people around the internet. this system is not working for them. it needs to be revisited. >> mr. love? >> i think revisiting the issue of formalities is quite born. the issue of formalities has created a wasteland of cultural works that are essentially inaccessible to people. goo not think people can back very far before they realize it is impossible to attend if i who the authors of works are, photographs, pamphlets, literature. a variety of proposals have been made to deal with orphan works, but one is to insert or the flexibility you have on formalities. requirements the on photographs in copyright, you could have formalities for that
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extended period. tppe is a proposal in the negotiation to do that. i think the u.s. is on the wrong side of that issue. the other thing in not all things that are considered copyrighted in the united states are actually required in our international obligations. and tactical look away you can introduce rallies -- formalities. maybe there was a good idea to give more protection to people -- the final thing is the treaty for the blind revised opportunity for the united fates to shared collections. i think i think that needs to be fixed. wanted tomer
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jump in on that. the written statement that i submitted put other matters into the hopper. thatupreme court ruled market goods could be purchased abroad and brought into this country. congress can come back and tell us if that was not intended. issue in therallel domestic front which is cloud computing. it introduces new rules. it essentially eliminates the safeguards of the for sale doctrine and congress needs to look at what rules and wishes to have for the roads of this uncharted territory of the cloud. >> thank you. as the cochair of the creative arts board, i believe
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rights isg available essential part of our framework. wasno-cost it right law necessary because existing law includes that. our federal appellate courts have erected the same conclusions and this is the case in various international agreements. i believe the making available right is an exclusive right that gives the creators i freedom to express themselves and to decide how and when they choose to distribute and publicly perform their own works. what if any impact we are carving out or separate making available to the copyright act, what would that have on online theft? it make making -- would
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it lessen the burden for individual creators or make the process easier for them to prove their works have been infringed upon? streamlinee it would the cases instead of having a large federal case about every activity of peer to peer sharing, there could be a proceeding if congress also adopts my suggestion of having a small claims court proceeding. it would be a salutary change to streamline those procedures and get quick and fair expeditious justice. disagree with the professor. oner napster you would go and find one user who has a file and downloaded from that particular user. that sort of filesharing protocol has gone away. most filesharing is with bit torrent. it is separated in different
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sent out in as swarm of many people who have the work. the issue with the have to prove the download is relevant. -- irrelevant. as a practical matter, almost all of these instances where filesharing happens when happens is the investigator identifies the person, the ip address, they go to court and get the subpoena to get the consumers information. they send a threat letter and that is as far as it goes. it either settles or the consumer can present to some evidence that they were not the person who did the downloading and that is that. actuallylative handful ever go any further than that. if he goes to trial, to get a copy of your hard drive and at that point it is relatively trivial to prove the filesharing activity you engage in.
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i don't see how this will facilitate or help small creators. you lookr schultz, like you have an opinion. >> no thank you. >> then he turned to a different case.about the aereo we know the supreme court agreed to hear that case to determine whether online streaming of live broadcasts constitute an infringement of a copyright performance.sive given the economic performance of a dash of intellectual property in our country and the evolution of modern technology, is this an appropriate question to for the courts to determine or should congress legislate and settle this area of law? how would the decision favorable to aereo change the landscape of the broadcasting?
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with thek i will begin second part of that question of how it changes the land people broadcast. aereo is not the only court case the broadcast and television creators face. we have one court saying intercepting signals and aggregating them and sending them to their customers at aereo does not require payment of retransmission fees. we have another court saying that scripting commercials out of broadcasts is perfectly ok. we have another court saying that virtual on-demand services are permissible. done,ll this is said and you have to ask where the revenue is going to come from. how these companies will get there -- get compensated for their work. if the decision comes
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out in their favor it would undermine the very premise on which the system is based that local broadcasters can be compensated for their tremendous investment they have a broadcasting and content creators can be compensated for their work. think this is an appropriate topic for the courts, but if the courts interpret the copyright act in a way that undermines of these fundamental policies, this congress will have to act. thank you. >> thank you. i yield back. the chair now recognizes the gentleman from north carolina. >> thank you. professor, maybe this is best directed towards you, what could you take a minute or two and
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explain further how u.s. copyright law compares to that of other nations, particularly distinguished features. >> ok. the theory of anglo-american copyright law is basically instrumental that it is therefore a purpose, to promote the progress of science. in the continent of europe, the underlying theory is much more based on natural rights that there was an intrinsic connection between the author and the author's creation. therefore, there is a natural right to compensation just by virtue of having created it regardless of the social policy that will come out of that activity of copy. that is the broadest answer to your question. parts that iical
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outlined place through with practical implications. we see in continental jurisprudence and very strict recognition of moral rights which is something that is alien to the u.s. way of copyright and was only put in grudgingly and only with respect to works of visual art in 1990 and it plays out in other ways as well. that is a very brief answer to extremely interesting question. >> maybe we can go down into some specifics in the context of that we are negotiating some trade agreements. what type of copyright issues might be brought up in that anyext and do you foresee divergences which would cause particular arguments? >> are you talking about the free trade agreements? >> right. aware, thes i am
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u.s. government has had great success in reaching agreements with other countries with respect to those free-trade agreements. there are 20 countries with whom the u.s. has bilateral relations. those treaties -- every single one of them possibly include a making available right. notwithstanding the philosophical differences between different countries with different roots of copyright, there has not been his agreement with those free-trade agreements. >> if anyone else would like to chime in with any particular issues having to do with our copyright laws versus other nations and problems with it. yes, sir? high norms ins terms of damages.
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the u.s. has a broader fair use right. the combination of such that technology companies which are really dominant in a lot of the internet areas have been up -- have been able to operate. what the u.s. is doing is cherry picking the parts of the u.s. law that in some cases it is for the publishers. a pic aggressive standards as far as the images. on the one hand -- a halfhearted way of looking at the fair use part -- what you have is a shift of increased liability or u.s. technology companies operating overseas. the u.s. has for damages but we have more exceptions and
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domestic law but most poor countries do which is a paradox. i think the problem and trade policy is that the negotiations are completely secret. we helped leak the september version of the ppt negotiation. the world's40% of gdp in that negotiation. we don't know what the current version is and neither do you. i don't see how you can possibly expect a trade agreement with japan and mexico. i think the congress has fallen down by allowing copyright policy to remain in secret and some of these trade agreements. >> thank you. i yield back. >> i recognize the gentleman from florida. pursue some of
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the assertions you make in your written testimony. all of this to support your version that there was no making -- no need for making available right. you say the unauthorized copying distribution across the internet are not the problem. of talk about the purpose copyright is not to maximize revenue, but to make the works more widely available. you said here today that the measures of music output is what we should look at, not at the money that is made. you went on to say even while formally illegal, filesharing has provided much broader access to existing works than the previous rocket makers had a pop -- had accomplished. i am trying to wrap my arms around a few things. thehad said earlier that
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copyright law in this area has always focused on -- never on individuals but always on corporations. i wonder do you draw the distinction at the individual who downloads a song or a movie whatally -- illegally and happens when that individual starts to create an opportunity to share hundreds of thousands and millions of songs and movies and other copyrighted work that can be shared with others. in that instance filesharing goes beyond what you are prepared to accept. >> thank you for the question. it is a hard area to get our hands around. it is counterintuitive to suggest that less revenue could lead to less work. i was surprised by the result when i did the work myself.
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perspective, i am an ivory tower academic. worldk does not have real significance. i want to explore things and figure things out. you get a result like this and you publish it and then you are at the center of controversy. -- not a is not in never-ending spigot. you cannot add more and more and expect to get more works out of the other side. there has to be diminishing returns at some level. >> i'm not asking you to restate your testimony. say that filesharing, the sharing of copyrighted material is ok, is it ok for individuals or is it ok for individuals to share tens of thousands of songs or films? >> if there is filesharing, there was the potential for sharing tens of thousands. we have assumed that has the same effect of a competing publisher comes along and offers
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competing prices in the marketplace. >> here is what i really don't understand what the argument thata legal filesharing -- legal filesharing is ok. to spread all this property as far and wide as possible, why is -- the computer in the setting of technology to share files that way than it would be for the big-box retailer to have someone come in through the back door and scoop up all the cds and dvds and take the mouse on the street corners after they have copied them hundreds of thousands of times or gone on business on their own. why's it different with the physical product and it is online? >> it is different when consumers are doing it.
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>> i am suggesting to you that the individual who breaks into the big box retailer and scoops up maybe one or two and makes copies of those and then goes ahead and shares those. different -- why should be acceptable for that to happen online but not on the streets? individual who was breaking into the big box -- are they offering those copies for free? that a distinction? >> i think that is an important distinction. whose goal iseone really to spread the great american intellectual property that we are also proud of by making copies and distributing her ownf his or goodwill. millions of copies -- that is
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perfectly acceptable. >> i think we do have such individuals. i think they are called a library's and have coexisted with the commercial market for hundred of years. >> they have libraries that not the setting of those that are going to make millions of copies to freely distribute to be used without any regulation. i don't see the difference. this is what is also confusing to me. when you talk about the fact, as you explained, he said the question isn't whether filesharing is affecting record sales but at the record sales affected the creation of the -- of the music. you talk about other ways that creators can be compensated. you go through all of them and conclude yourself that all of those areas are not enough to make up for the amounts that are lost as a result of the theft of all this property. .
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it makes the song writers and actors and actresses and everyone involved in any film or tivo -- tv show involved that are off. you seem to refute your argument and your conclusion is, yes, you ,o it knowledge in a footnote there is less money going to the industry but it is not fair to point out that may mean there may be fewer creators. all that means is that if you have informants -- tougher dollarsent, those flowing into that would otherwise go to other industries. the conclusion that you reached that somehow it is in the best interest of creators in our country for their creative works to be spread far and wide without compensation and not
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just a couple of kids trading songs that hopefully they thehased, but in fact, spread of tens of thousands or millions that ultimately the goal is to spread that and that ofinishment in the amount compensation to those creators will have no impact on their ability to continue to their jobs. it issn't makes -- inconsistent with all of those that i talk to that rely on copyright to protect their intellectual property. it is inconsistent with what they tell us they need in order for us to continue to uphold this great american intellectual property that we value so much. it >> the gentleman from pennsylvania. wish i had three or four hours to sit and discuss these matters with you. it has been enlightening. ms. griffin, you made a statement concerning standards
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and how they apply to life in general. beyou think that we could served by the industry itself setting standards would you believe that we need to legislate more? >> clearly, the way the system works with a public-private partnership with standards developing organizations that have technical expertise working with the federal regulators who are in their space. up and through that partnership they develop regulations that meets the requirements of the regulator. in this country that is a very diverse group of people and there are many groups that do that. what the standard developers organizations bring it to that is providing administrative support that permits the group bet sits at the table to
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open and balanced and transparent and not dominated by one group. they provide the administrative support to having consumers sit at the table and provide input that would not otherwise be provided if it was just a government event. i think that balance is what makes it wholesome and makes it the system it is. >> thank you. -- iessor, you talked about have a search engine. i name it after my son. musician. you choose whether you want to be the singer writer or musician. at this point, you have a cd out, you have music out, and i do not buy it from you.
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you are paid no compensation when people put your name in my search engine, your music comes up. you send me a notice. i do nothing about it. when your music comes up because i am the guy that is illegally selling music to people and you are not getting paid for it and you keep sending me notices. what do you think should be done about this? >> thank you for the question. there are two difficulties you identified. one is that the current notice and takedown system is based on identifying a particular file rather than a work. is based on an old paradigm that what we had to do and in 1998 was stop a file
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pull it back. now every time someone's work is infringed, they have to send a separate notice through every file. >> do you think i should be held responsible even though you are not sure how many people are downloading that music because every time someone gets on my search engine and posture name in there, your music comes up, and i am selling it to somebody for $.10 a pop. >> if you are the site hosting and profiting from someone else's work whether it is through advertising -- >> do you think i should be held criminally liable? >> that is a more challenging question. >> i am stealing from you. i was a prosecutor for 18 years. i am stealing something from you in making a profit from it. yes, i think criminal law can
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be a useful tool, but it have to be very carefully applied to instances where the users -- >> tank you. -- thank you. instead of an attorney, you are a struggling poet. you live in a one-room apartment and you don't have heat in the winter. i am a songwriter and i'm looking for your book of poetry and find this magnificent: that you wrote. i take that and put it in music and make $10 million on it. you have a problem with that? works issue of derivative is different. i personally would not have a problem with that. >> you are struggling. you write this book of poetry and you don't have a problem with it? -- iteel that those works is the second comer.
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>> your father is a great poet and struggling in trying to keep the family. make $10 poetry and million on it and he can see his children. -- feed his children. you have a problem with that? >> i am not sure you are doing with his poetry. >> i am selling and making a lot of money on it. >> you are putting it on music? he was just a poet? sell andlly wanted to it is not making good but i took a poll on out of that book and now i made $10 million and he can't feed his kids. >> i perspective on derivative works is that we shouldn't require licenses as it is really the derivative author that has value on that. >> i think it would be a little angry if my father said that we are not eating but i think this
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site -- this guy should be able to take my work. it -- the gentlelady from california. >> thank you. if we were to clarify the making available right in the law, do you think that would raise any first amendment or free speech issues and if so do you think what might we be able to do to avoid those challenges? >> i believe that a simple clarification that the copyright owners distribution right includes making work available but not advocate any first amendment special interest that do not arise automatically. i do not believe we need to not pay special attention to that. congress wished to have a special, surgical intervention in the peer to peer domain
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because of pornography lawsuits. if they wish to limit the protection for pornography, that might be a way to address the problem. that would raise the question of what level of first amendment scrutiny would apply. available aspect of this region right does not have any first amendment concerns. m. i agree with hi assumptionating an that it was presumed to be downloaded, that it would be an infringement on either education. -- interpretation. i don't believe that would raise any first amendment problems. general making isilable right or whether it cloud computing or social networking, you're going to get into some first amendment issues.
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>> if we feel that the making available right is implied in the law today, why do think the courts are having such difficulty with this right now? >> i believe the elephant in the room is the amount of statutory damages. when the young single mother is clearly culpable of copyright infringement and yet should be -- she could be held by the jury liable of lots of money for statutory damages. that is why i am urging congress to have a global solution that reaffirms the making available aspect of this region right wood ges.n -- would counter dama >> do believe with the professor's statement that having index was in reference to making available
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right would cause economic harm? i am not positive which aspect his statement you are looking at. i look at economics very differently than he does. it is a very interesting study but what it does not illuminate is how much music would there have been created in the last 10 years of lowering studio costs had not been peer to peer illegal filesharing. >> do think there is any way to defy the making available right more specifically that would not cause court cases >> there would be. if you want to affect it in the filesharing context you could --ate it resumption presumption. you could make a presumption if the defendant wants to come forward with that.
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far inr gets that existing cases. in the one case where it was guilty ofe was found copyright infringement the first time. it was retried after the district judge said, that's not right. she was still found guilty. >> i yield back my time, mr. chair. >> the gentleman from california. >> thank you, mr. chairman. i ask a lot of documents be placed in the record earlier, and most of them are related to the gentleman next to you. meis an amazing thing to that i came from a standard- , and yourganization could not have a high definition television if we had not figured out what the standards would be. we would not be arguing over
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capturing of digital broadcast if we did not have digital broadcast. standards are extremely important. but standards and laws are different. i would like to concentrate on this end of the table. i'm going to read the shortest part of the constitution for a moment. it says, to establish post , toces and post roads promote progress -- i will skip over of science and useful arts -- i'mof limited times going to read how it relates to copyright. to promote the progress for authors.imes to that's it. that's the constitution. it's only a paragraph, to promote progress of science and useful arts by procuring for a limited time to authors and
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inventors the exclusive right to their writings and discoveries. that short one, to promote to authors. who authors a law? that is my point and point of all the documents i put in. if the state of idaho, state of georgia, state of mississippi, if they produce a law, every single person who voted for it is an author. it doesn't belong to some entity by definition. --'t every law in fact obamacare has people who do not want to be authors and a few left who do, but on the day it passed we were all authors. i'm going to concentrate on this and then open it up to the rest of you. , isn't inest form
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fact every single person who participates in the creation of byaw or the inclusion association of a standard in and therefore, if i'm willing to have it released to everyone as an owner of that , don't you ultimately have no possibility of protection? the state of idaho is inherently wrong if they consider any part of a lot required or mandated to be eligible for copyright. -- i've been in congress for 13 years and about eight days. i don't need a copyright to promote politicians making laws. promote being the the basis for copyright, don't
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we inherently have a decision to make about anything else that forget about what we do with the copyrighted material. is it really eligible for copyright? >> congressman issa, thank you for the question. that is the crux of the matter. looked, there is no incentive -- >> politicians will make laws. standards bodies, i've never seen a standard body object to one of their documents becoming incorporated by law. that's often the case and it is especially crucial on public safety laws. referenceorporate by to many things and perhaps the guidance of this committee could be used on that topic but for those that are crucial, the laws on testing toxicity of water, is
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something that every citizen in west virginia today wants to know what those laws are and where they carried out properly. that is the key point. you cannot have it both ways. if the document is the law, it has to be available. i respect the rights to the standards bodies to develop a wide range of standards. once one of those has become the law, it needs to be available. a standards body can say, please do not incorporate this into law. we would prefer this document not become the law and that is perfectly acceptable. there are multiple standards bodies, several building codes, plumbing codes, and you will find a group standing up and saying, please designate mine to be the law. >> ms. griffin, i'm going to ask you the follow-up. if it is a voluntary standard, it is available for copyright.
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but if it is incorporated in law, at that point shouldn't you object to it being incorporated or recognize that you are waiving any copyright objections from the public having free and fair access to essentially a law they must comply with? >> thank you, congressman. the answer is, incorporated into omd. those policies and laws dictate that government agencies, federal agencies incorporate voluntary consensus standards in lieu of government unique standards whenever they're able to do so. is nowhere enshrined in the constitution and it does not have exclusive legislative authority. this is the committee that must beide what can or cannot covered under the promote an exclusive element.
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the rest of the panel is extremely important, but in a the law and people's access to laws which they must comply with -- inherently this committee has to decide whether that should be stripped of any and all copyright to the extent that we have authority, which has nothing to do with what omd thinks. they think they can make laws without congress getting up in the morning ever again. would you say that has any grounding? >> if you could be as briefly as possible. >> let me tell you what the second and ninth circuit said on that very point. the ninth circuit said the due process requirement of free access to the law may be relevant but does not justify termination of -- in this case
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it was the american medical association's copyright. there is no evidence of anyone wishing to use the standard at issue in this case had any difficulty in obtaining it. that was the case in the ninth circuit. the second circuit in a similar case said we are not prepared to hold the states reference to a copyrighted work as a legal standard for evaluation. while there are policies that support the argument, there opposed by countervailing. adoptionthat the deprived the copyright owner of his property would raise substantial problems under the taking clause of the constitution. sentenceng to the last of that paragraph. although there is scant argument, thethe professor opposes as antithetical.
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at the end of the day, it's a balance between the rights of copyright holders and the value that those copyrights bring to federal regulations. >> thank you. mr. chairman, i appreciate your indulgence. in the copyright reform we are considering as a committee, in order to have my vote on final passage, we will have to rectify the ambiguity in the law so that every american has free access to every law that he or she must live under. thank the gentleman from california and the witnesses. there will be ample time after the hearing for exchanges between the members and the subcommittee. offne is being shoved abruptly. i would like to thank the
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distinguished chair and witnesses for their testimony. i want to start with the professor and try to get some some ofas it relates to your written testimony on pages six and seven. , theottom of page six purpose of copyright is not to maximize the revenue of the music industry or copyright owners were generally. is that correct? >> yes. is it fair to say that copyright owners are content creators and are entitled to reasonable compensation? >> i think we have to sit down and define what reasonable is. that would be a more difficult task than you might imagine. that it your view copyright owners or content creators are entitled to any compensation whatsoever? >> it's not my view.
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i would be happy if they would be well paid. my only perspective is in terms of constitutional purpose our focus should be on output. artist orpensated musician is important for outcome. >> let's focus on the constitution. the relevant provision is .rticle one, section a, the progress of science part of gives congress the ability to create a robust patent system, is that correct? >> to promote the progress of the useful arts is for patent. science is for copyright. >> so you have to find -- de
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fined -- will be the basis of that conclusion? >> the clause says parallel structure to promote the progress of science. of those three pairs of words, the first is copyright, the second is for patent. >> the supreme court has defined the standard to accomplish two legitimate ends. encouraging the creation of new , and to encourage the dissemination of existing works, correct? >> that is what the court said. >> as it relates to encouraging creation of new works, is it fair to say that providing artists, content creators with the opportunity to benefit from the fruits of their labor in some meaningful way serves the
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purpose of encouraging the creation of work? >> as a general proposition i have no disagreement with that statement. >> what would you disagree with? it's always a question of how many rights and how broad the rights need to be. do we need to address every specific instance? in the academy we talk about leakage in the copyright system, instances in which individuals or companies copy and they are not sued or it would not constitute copyright infringement. important a fairly part of the system. trying to determine whether any given instance of copying, some are easily straightforward. a commercial competitor who takes a copy and sells it for less in the same marketplace is a copyright infringer. someone who takes shakespeare's "romeo and juliet" and creates "west side story" would not be a copyright infringer. >> is your position as it
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relates to determining the measure of what happens when reasonable compensation is not provided is that we should simply allow for the dissemination or reproduction or sharing of works and in evaluating whether content production has decreased? >> note, i'm not advocating randomly changing the law to see what happens. filesharing gave us an opportunity to see what might happen. it was formerly illegal but it happened. revenue to the music industry, even considering the revenue sources they have, went down. what happened to output? what does that tell us about whether we had not enough copyright, too much, or not the right amount? moreu get as much or creative output, for me that suggests that we may have had too much copyright to begin with. >> so we would be concerned
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about the impact on the economy in that scenario? >> it depends on what you mean. , the fact that some money does not flow to the music industry will remain in the consumer's pocket and will be spent elsewhere in the economy. jobs lost in the copyright sectors will be picked up when consumers spend money on education or employment or health care. professor, you referenced earlier in your testimony the facts change on the ground. you may have mentioned it in the oftext of misinterpretation a treatise you had prepared developmented the of napster. we have also seen the advent of streaming, cloud computing. technology changes over time. it's a wonderful thing, i think many of us would agree. the issue is, how do we accommodate technological changes as they move forward but also create the certainty in the law and copyright protection for
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the creative community? any words for us on the committee as far as how to strike that appropriate balance? >> i do agree it is the right balance. at the end of my written statement i reproduced one word, ,ne page from 50 years ago written in 1965. it said, we don't know what the law will be 10 or 20 or 50 years from now. they said it is becoming increasingly apparent the transmission of works by link computers may being among the most important means. we believe the day has passed on any particular use of works should be exempted for the sole reason that it is not for profit. those are wise words to guide us as we go forward. this was written at the culmination of 10 years of study, ended beautifully encapsulates much of the philosophy that needs to go in.
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that would be my watchword for congress. >> thank you. my time has expired. >> the gentleman from new york. i owe you a bladed apology. i previously mispronounced your surname. >> i always told my students it rhymes with funny, and i'm not crazy. thank you, mr. chairman. in vertically you may have -- inadvertently you may have summed up this discussion. if i believe that copyright protections and other rejections is not only the proper balance protects innovation and growth -- you made a comment when you said, the gentleman from
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pennsylvania, it is just a poet. poets have changed the world. their words mean something in their copyright protection means something. that sums up this entire hearing. there needs to be a proper balance struck. when you say it's just a poet, just a writer -- was hemingway just a writer? was clancy just a writer? that's the heart of what we're talking about here today. you summed it up in an offhanded way. i want to continue this discussion. we do have an interesting comment here. i'm from georgia. i appreciate -- i think what you do is a public service. i have a problem with where we're at right now and what we are defining. senator, andr to
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my state of georgia use of the official code of georgia annotated every component of it is the official law. what is an annotation? from can be anything toelance editorial content the contents by the legislative council or state itself as to the import of the code. is an annotation a statute? >> that comes to the crux of one of the problems we face and why this committee might want to deal with this issue. computer guy. i'm a law school dropout. i want to put all 50 state laws online. >> i have no problem there. the problem we are getting into is the definition of what is an
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annotation. if you go to the free public website, it takes three clicks to get there on the georgia legislative page, you get the free georgia code annotated in which it says the annotated code is copyrighted but it makes specific reference to say that the law or any other recognized by the law is not copyrighted. it's the work of the annotation, which is more than the law. >> the terms of use of that free site prohibit me from making a copy of that. >> what it prohibits you from doing is taking a book and copying it and turning it in as your own work. when i was in school, that was called cheating or plagiarism . the annotation part is really where we are getting here. comment that says, states such as georgia, idaho, mississippi have spread fear, uncertainty and doubt sufficient
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to throw a deep chill. you are a good author and if you were a part of this, you should have it protected. but if you put it out there, that's your choice. >> i believe you're being disingenuous here. to throw a deep chill when you can go three steps and get it for free? the part i'm concerned about here is the bigger step of taking part of which we all recognize the law, the statute. that code, the actual non- annotated -- to say that an annotation is the law would be about like taking this committee memo and saying it is a part of the federal code. that's not true. it is written by someone else, input by someone else. the question for me is the way
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it was handled. the issue is there. actually was the work of someone else. sure that make copyright laws and is always others have discussed, there needs to be a proper balance. taking the state of georgia and others and claiming they are chilling innovation, i think it is over-the-top to make a point about something that is not really true as, and the law itself will not negotiate. , we have done the work respect the work. we don't go out and say, i've got the book, let's copy it because i don't want to do the work of annotation. that's the problem i have. we will have many more conversations.
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that goes back to the heart of it here. if you do the work, the protection is there. not taking a shortcut because you don't want to do the work. the gentleman from new york. >> let me start by thanking the witnesses for their testimony. do believe we have to do a better job of protecting content owners, artists, musicians and creators and making sure there appropriately compensated. i want to ask you more broadly about protecting copyright today. professor, you mentioned there is no need to make explicit to make available right, and it would not have an effect on curbing online theft. you mentioned with bit torrent users, users are uploading and downloading simultaneously and making thousands of illegal copies. the law has already made this practice illegal but it has not stopped it.
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internet.cross the we heard chairman goodlatte mentioned that google is receiving its 100 millionth takedown notice and someone observed the gentle millennium copyright act is broken -- digital will and him copyright act is broken. what would you advise as a way to protect works on the internet? >> a number of us at the academy explored the idea of having a levy, a system where you authorize consumers to file share as much as they would like and you add a charge to their internet bill h month and that money goes into a pot and is redistributed to the copyright owners whose work is being file shared. i'm not certain there is any other solution -- >> wait. system,up an ascap type where you can download it.
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google does not get a takedown notice but does note that you .ownloaded it who pays into this fund, anybody who goes on the internet? >> it would be a surcharge added to your internet bill. >> i never listen to music. why should i -- >> it is unfair to people who do not file share. it would be a mechanism for compensating. >> anyone who accesses the internet would pay a levy which would be administered by some new organization or old organization and the funds would go based on someone's assessment of how many people listen to my song? >> how the funds would be distributed would have to be decided but we could use some sort of sampling system similar .o ascap or bmi
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the investigators currently tracking downloads to bring actions to get a subpoena -- professor,sk the what is your reaction to the suggestion? i put in footnote 69 of my written statement, the citation to the professor's article, levied to allow free peer to peer filesharing. that is one of many solutions. the problem with these proposals, there are feasibility problems, treated compliance problems. to prejudge it at the outset. it's a fascinating vehicle. it requires a lot of study. the devil is in the details. it's a completely different way of looking at the issue.
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>> you said there are a number of others. are there other major suggestions available? >> yes. harvard hasscher at proposed something i will basically call and entertainment tax, the government could decide how much money has been made through all the arts and allocate that and allow free sharing of culture. i'm almost lampooning his proposal. >> might be interesting if you take out the word tax. [laughter] it has a certain ring around here. professor, would you comment on this? >> the levy idea is a terrible one. you are in fighting government to set prices. the government to set prices. fundamental law in copyright is
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the owner gets to decide the terms in which it is alienated. when you take away that liberty, you take away first of all the value of the price signals. >> your comment now would apply to a private ascap type thing -- >> not to a private ascap thing. a system where people enter it voluntarily. >> what would your comment on that be? >> in a system like that, sure. ofy are proudly -- plenty collective rights organizations. privatetially remains otherwise the government determines prices. >> ok. comment.ssor wanted to ofwe have had a long history use of compulsory licenses when markets are not functioning well. often connected with new
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technology. it's not really beyond the pale that you move to some sort of compulsory license. you touched on the issue of how you pay the money out. the first instance people look at is the sampling thing. a different approach is to have theconsumer be able to pick society that rewards the artist in way they prefer. in effect, the consumer is becoming a patron of the arts. their mandated -- >> several operations doing several things -- >> you would pick. andwould go to madonna britney spears and another one would do it differently. you would be able to pick which one support the arts in the way you prefer. that is a different model than the sampling model. there are alternatives.
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-- the soundgs like things we should explore but i see my time is expired. i thank you all. >> the gem in from texas. -- the gentleman from texas. do that weld it can't do already? >> in the filesharing context, i don't think would change what is going on in that arena at all. it would make it marginally easier to pursue file sharers. i don't think it is a business decision. making it easier for a plaintiff, what other protection are we providing creators? essence is to make it easier for the plaintiff and thereby comply with the u.s.'s treaty obligations. infringers bad guys are getting away now that would be getting away if we were to do this?
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>> i don't have the empirical figures. >> do you realistically think that any? >> no one has been sued or brought into the legal process has gotten out as far as i'm aware because a download cannot be proven. >> let's talk a little bit about it. we talk about it in a traditional upload context. you put it in a shared folder, you have made it available. have you made it available if you link to it? say you are google and you are a search engine and you haven't posted anything yourself but you link to it. a broad definition of make available -- we could craft the statute however we want. get non- potentially guilty parties there. >> the worst part in my mind is that we would know. if you adopt a broad right, we would know with the litigated whether linking would be infringing it. copy of the took my bought and read
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and donated to the library? what i be making that available and completely undermine the first doctrine? >> in the treaties and distribution contracts, -- context, i think the professor would agree with me. it would be looted by the first sale doctrine board -- limited by the first sale doctrine. folder on is a shared their that i have made a village -- available to my television set and my other computer and probably my daughter's television set and my wife's computer. where do you draw the lines there? is in aanger here standalone made available. if congress were to pass a new seventh right under copyright which is making available all the dangers that you cite us come a would facebook. i believe we can avoid all those dangers, including the danger of sharing with your wife and daughter, if we simply define
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the copyright owner public distribution right to include making available. when you include your wife and daughter, that is not an act of public distribution. >> alternate each of the topics. i need to go to professor schultz. i'm a former broadcaster and i understand how tough -- tough it is for local broadcasters. don't the broadcasters want as many eyes as possible viewing their newscast so they have more volume to sell to advertisers? >> that is a good question. advertising revenue is one they make a --w how they constitute their business. there are other components, including the retransmission fees, that are essential to supporting local broadcasting. is, guess the other issue
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at what point -- do i have to negotiate a deal with all my local television stations to put so i can watchse the corpus christi newscast when i'm in washington dc? >> you absolutely don't have to negotiate. >> i want to make sure it does not go that far. with some ego to the other end of the table. -- let me go to the other end of the table. the public ought to have a right to get to it free. don't the standard-setting collect membership dues and generate revenue from the members who participate? i understand in the old days a cost money to print up the books and distribute them. now the marginal cost of making this information available over the internet is basically none. to thes zero volume light it does not fit the lightbulb standard to use your analogy.
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shouldn't the private sector that benefits from -- pay for them, and the public should have them free? why shouldn't i be able to print out a copy of electric code make sure that the electrician about the right wire at my house? up the right wire at my house? >> many do base their revenues on membership fees. many do not. largelyat are are lot non-for profit organizations. it keeps their barriers to entry low. they have low entry fees, never shipped these. they can use the sales derived from the use of revenues -- >> i see my time is expired. i would love to sit down with you and we could probably debate this for an hour. it is available i could do because i think it is important. i think you may waive your right to that want to fight to get it
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enacted into law. it is something we can talk about when we have more time. mr. chairman, i yield back. >> there will be ample time to revisit this time and again, i am sure. the gentleman from georgia. >> thank you, mr. chairman. i started practicing law about -- well, back in 1980. in going into the law libraries of georgia state university to get ready for cases and to represent various folks in my general practice, i would call books upon mr. nimmer's -- i recall coming upon mr. nimmer's books. i can't believe he is sitting here looking as young as it looks. i thought he would be many years older by now. thank you for your contributions, sir. stronglong supported
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copyright protections as the backbone of innovation, creativity, and public good. but materials created by the u.s. government and state governments do not deserve copyright protection nor have they ever received it. in 1888, the supreme court held in banks versus manchester that there is always been a consensus that judicial decisions are in the public domain because the work of andes binds every citizen is and should remain free for publication to all. the courts have continuously upheld the understanding that the law, be it state or federal, is in the public domain. section 105 of the copyright act reflects this view specifically denying copyright protection to statutes and regulations. at its core, the issue touches on the american ideal for know thethat we must
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laws that govern us. this is fundamental to the rule of law that underpins our democracy. particularly when that concept of ignorance is no excuse pervades our process. to upholdingntral our system of checks and balances by holding congress accountable for the legislation passes or fails to pass. as we review copyright protection in anticipation of the next generation -- excuse me, the next great copyright act, we must continue to protect americans' access to public materials in the public domain. mr. malamud, thank you for appearing today. i want to thank you for your work making public law accessible and known. it is easy to take for granted how important public databases
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are in our increasingly agile democracy -- digital democracy. unless they are digitized and available, they are out of the reach of many. in your written testimony, sir, you note that you are currently publishing official state and municipal codes. as a former commissioner in georgia, i appreciate the importance of private citizens working to improve local communities. making the benefit of both public data available for municipal governments? i will add to my comments that when you want to, if you are a citizen of the state of georgia, and you want to go look up the clinicala local subdivision, it is very nice to be able to be able to go online
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and get that information. what is the benefit of making public data available for municipal governments? >> thank you for your comments area -- comments. the issue we have with the georgia court as it is is that you cannot get the okidata. you cannot go to the free website and download the whole thing and make it better. what happens when all data be data because- bulk available is when volunteers will go in and make the significant -- decoder significantly more available. this happened in the district of columbia recently. several volunteers came in and they have developed a vastly better version of the d.c.: that informs citizens in a better way. we encourage citizen participation in the process of informing each other. that is why we care so much
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about the official code of georgia. local governments have responded to making municipal codes widely available? >> we pushback at the state level. at the city level, the pair opening -- welcoming us with open arms. in chicago, i recently spoke -- white househ officials and unveiled a new chicago code. san francisco has recently revamped their municipal code. there are about 2000 municipalities that are about to have better municipal codes available because of the efforts of the volunteers. >> thank you. my time is expired and i will yield my remaining time back. >> i am told that there will be an imminent houseboat -- house vote. imminent -- whatever that means. i hope we will not have to detain our witnesses.
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>> thank you, mr. chairman. malamud, i am assuming that you agree with the southern building code case. >> absolutely. >> what about the two circuit cases -- we have the brief here that we will discuss -- involving the one was the ama code and the other was the used car read a book -- red book. the court found her copyright protections. what is your opinion on that? do you agree on the outcome? >> i am not a lawyer, just a citizen. my take on that is that the decision was about a crucial public safety code that had been incorporated into the law. the other cases were about medical codes that needed to be used by authors. to me, it was the distinguishing -- the distinguishing factor was
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the extent of public safety was at stake and if you look at the building codes they all began with a sample ordinance of incorporation. the people of insert name of jurisdiction here to do adopt this code. it was meant to be the law. to me, that is the difference between the cases. >> so you think it does, just the fact that government has some sort of administrative program that something is referenced, whether it is a red book or something, you see the distinction between those situations and one in which the law was adopted verbatim from -- >> from a public safety standard, i look for one that has been explicitly incorporated by reference. as opposed to casually. we look at state codes and often they will mention something in passing and we keep our hands off those. when it becomes part and parcel of the law, that to me the fact happened to be an extra document is no different than if the state had authored that it self.
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position on the building code? do you think it was incorrect? >> i think there is a sharper distinction begun between that on the one hand and the two circuit courts -- circuit court cases on the other. that was a unique situation. it was limited to unusual fax. -- facts. they wrote the code with the specific contact -- intent that was incorporated word for word into the law and it was. the defendant copied the law and not the model code. under those circumstances, the as the law,t said this content loses his copyright protection. the court was quick to point out that it was a limited case, that it did not apply to what they called intrinsic standards. those are standards that are incorporated by reference into
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law like the second circuit in night -- second circuit and ninth circuit states that courts. -- night circuit courts. circuit courts. >> how often do they adopt completely verbatim? legislators can use of these model codes as guidance. they don't have to adopt at all. that is more of a need -- a unique case, you are saying, when you adopted wholesale. >> my organization does not develop standards. i don't have statistics at hand. i know some codevelopers enter into agreements with the governmental entity. there is a site in the
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regulation for the websites in the sale of that. i think there are different kinds and multiple opportunities for dealing with that situation and i think that is one reason why they have said in the context of its recent violation this to bet us leave figural rental -- federal regulators to come up with something reasonable. at the end of the day it is about access and about whether the public has access to be standards, not much -- not how much they cost. when that decision was appealed to the supreme court, the solicitor general came in and suggested that the vector decision was good law and the supreme court followed the recommendation. of as the standards of codes are developed i whoever is involved with that, what is the risk for the viability of
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that without copyright protection? >> it is a huge risk to the standards development organizations. if they were not permitted to derive revenues from the sales of standards, then they would not be able to fund operations. is operations included -- those operations included providing development will support to the development of standards to make ate all parties are sitting the table to make sure that consumers are at the table. no one will pay for that. the the standard developing organizations were mission related and not-for-profit organizations. they're able to do that by selling the standards and using the revenue. by contrast, if the government was to take that process away, the government would have to providethat expertise, that administrative support and ultimately the taxpayers would pay for it. i think the change would result
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in a very profound and detrimental change to the way standards are developed in the country. >> thank you. i yield back. >> the distinguished lady from california. >> i will be brief because i want to make sure that my colleagues also has an opportunity to participate. i havesn't -- as listened to some of these proposals, it seems to me kind of interesting that people seem to have forgotten our experience with so but -- sopa just a year ago. i don't think, and if someone feels differently, speak up, that the attitude towards sopa has done a u-turn. it really goes in the same direction.
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it is a nonstarter in my opinion. i certainly value getting viewpoints and academic discussion but it is not going to happen. i think one of the things that has been raised that we should review is the issue of statutory damages. when you look at some of the outrageous things that have happened with statutory damages -- think of the case of the single mother the riaa brought a case against. a jury awarded $1.5 million against this woman for downloading 24 songs with no indication that she had ever even shared them. 54,000s reduced to because of the disproportionate nature of the statutory by the judge. you have that kind of statutory scheme. it is a rational, and it needs to be changed.
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i spent a long time trying to work on that and finally gave up along with the other members of the committee because of the theansigence of some of participants. i think one of the things which should look at is what the damage is that we did by extending the copyright term. we now have a copyright term that basically is the a century and a half. we have aggravated the issue of orphan works by doing so. unfortunately, you wish you could go back in time and undo some things. one, i am convinced -- i was a freshman and a treaty required the vote and now i know it was not the case. i wish i could undo my yes vote bonoe sunny bodo -- sunny copyright extension act. aboutal issue raises
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standards and public law. i was going to ask unanimous consent to put into the record standards forhe --. i don't need to because my colleague, mr. issa, has already done so. it seems you cannot have secret law. you cannot require to it here to a standard that is not in the public domain. i am sympathetic. i understand there is a business model set up. you cannot allow the business model to trump the rule of law. of the discussion about publicly funded research. we had a hearing a couple of years ago and the nonprofit societies that are basically funded for their peer review process, which is essential, by the publisher. that isa business model
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deleterious to the public's right to have publicly funded research made available. we have changed that and i think over time the way we fund nonprofit societies is going to change as well because he do provide a useful model -- they do provide a useful model. you cannot allow current business model to dictate the end result. , andu reference a document has to be part of the public record. if there is a fee, that assumes that the public has no interest. if i'm a contractor, maybe i can afford to pay the fee because i'm going to make money on that. there is a public interest in this. it is not just people in the business. right to public's know. is this a sufficient standard? the only way we'll find out is
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to have free access to it. put up a screen to that as part of the law is completely and wholly inappropriate. theree with mr. issa that is no copyright reforms that we should support that doesn't resolve this issue. i have listened with great interest and although there is academic interest in this, certainly the public spoke very loudly about sopa and i don't believe we're going to have the appetite to revisit that either in our copyright laws or in the tpp negotiations that are underway. you are right. we don't know what they are the links tout wiki leak is sopa. if sopa but isn't tpp, it is dead. i time is expired and i yield back.
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>> let me thank the chairman for the generosity of time. panel and excellent well committed in this area and with a lot of history in this area as well. not enough time for our questions. i just want to go across to everyone. i know that you spoke to different issues in my colleague mentioned sopa. i just want a yes or no to this question -- do you feel that congress should way into your particular issue of testimony of today? mr. namer? >> yes. >> no. >> not yet. >> you should pay attention to the negotiation on the broadcast treaty. >> is that a yes or no? >> should you change u.s. law in that area deck of -- area?
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>> yes or no? >> we don't even know what the treaty is yet. >> no. >> absolutely, yes. >> thank you very much. >> in your testimony you noticed where a egp user that goes to trial is held by the fact that a with this promotion -- disproportionate damage -- could you please elaborate on this? i have one or two other questions. we'll would be a recalibration of the statutory damages so they do not face a multimillion dollar judgment? could you expand on your view of the broken window parable ? that which is seen,
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and that which is unseen? if you could think of that. professor shells, i know that my colleague asked but if you could expand on that. >> when jamie thomas rast it beento trial and it has noted that it was $1.5 million. she had the option of settling or it -- settling it. she turned it down because she had committed perjury and because the try was so egregious , the jury came and hammered her. what you be reasonable measures for damages. it did make sense back in 1999 congress calibrated statutory damages to look at how many works have been infringed.
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at that time it was not possible to infringe 10,000 works. it was physically impossible. today it is possible. it is to look at what level of damage would cause deterrence and would compensate and being somewhat related. i did not come here with a ready metric but it could be several hundred dollars for each and every copyrighted work that was implicated, or it could be $100,000 in any given lawsuit that is brought or another measure that is somewhere within reason and does not get us to the hundreds of millions of dollars. >> refinement, clarity, and determining how someone could be made whole. in 1850 was written that when the government creates a subsidy program for the art, that is not money in the economy.
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they're taking the money from economy -- the economy and consumers. what we don't see is that by taking the money from the consumers through taxes, those consumers don't have that money. they can't spend it on something else. the jobs at a loss in the other sectors because consumers no longer have money to spend their is not seen. we can do it nor. but we should not. -- we tend to ignore it. we should not. if you're just moving one -- money from one place to another we are not gaining anything. if you could come up with a magic wand that would restore to so the moneyustry lost, that would not be a net gain to the economy. consumers were not able to i is much -- by as much music. -- buy as much music.
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>> you have a company distributing a signal -- a tv signal to many customers. that would seem to fit the definition of a public performance. they perceive it as a copyright paying and they're not copyright. they're not paying retransmission fees. yep ask yourself -- you have to ask yourself that between the broadcasters and creators, who has the economic rights to distribute those signals and receive profit from them? i hope the supreme court rejects the interpretation of the law that allows them to do this. if they do not, i hope the congress will address that.
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>> mr. chairman, you have been gracious in your time. think there are a lot of competing issues here. i think we have a great respect for our artists, great respect for artists -- broadcasters, and many of you have taken. and i yield back my time. >> we want to express our things to the witnesses who have prevailed during this marathon today. it has been a very worthwhile balanced presentation. i appreciate those in the audience who have remained in its entirety. your presence indicate more than a casual interest in this very, very significant issue. this concludes today's hearing. things to all of our witnesses to a hearing -- for attending. you will have five legislative days to submit additional
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questions to the witnesses or questions for the records. the hearing stands adjourned. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014] >> tom wheeler is the chair of the federal communications mission. he says he supports an open internet and he responded to the d c circuit court ruling which strips the fcc of its authority to relate internet access services. the discussion was hosted by the minority media and telecommunications council. it lasted about 20 minutes.
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[applause] >> thank you, david. i am happy to be here. i don't know how i refer to this distinguished group up here. are these colleagues? are these predecessor colleagues? over the years i've referred to them a lot of different ways. [laughter] but i'm not sure what but it's great to be here and be this w this distinguished group of predecessors whose rather large footsteps i'm proud to follow in. i want -- david, that was really nice what you said about our first vote. let's give credit where credit
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is due. when i showed up, you may have noticed there was a little wait before i showed up. and when i showed up, there was the foreign ownership item sitting there ready to move because the chairwoman had made that happen. all i did was -- [applause] i agree, what a job she did. all i did was get the glory of carrying the ball over the line. she did the hard work to get it down to the goal line and in so many things that we've been able to do here early on is picking up on the legacy that she left us. this is my first d.c. policy appearance. [applause]
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i was in a town meeting in oakland last week and i said to them that there was method in my madness, that i had not appeared before any groups in washington, d.c., that my first speech had been out in ohio at the ohio state university. my second was in silicon valley and followed immediately by oakland because the action is out there. but if i'm to break the mold and make a washington appearance, i couldn't think of a better place than here. so thank you very much for inviting me today. >> the struggle for minority participation in the media has been long, it's been heroic and it's been right.
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what i'd like to do today is to visit with you about how we can take those kinds of ideas to a new level, how we can join in a new great campaign that celebrates the activities of the past but identifies the opportunities of the future. i think we need to begin by being honest with each other. supreme court has made it very difficult for the government to take direct steps to create advantages on a specific group basis. but it has not removed the twin goals of diversity of voices and diversity in ownership. the challenge is how do we go
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after those goals and i think the new environment we exist in offers that opportunity. i believe that the new opportunity campaign should focus on yes, the opportunities created by our new network realities rather than refighting the struggles of the past. yes, i think it is outrageous that there is no minority ownership of television stations in america. but the interesting thing is that that reality now exists in an environment where facilities ownership is less critical to diverse voices than ever before. just ask reed hastings, the


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